Craig v. United States of America

Filing 34

ORDER adopting 30 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 16 Motion to Dismiss. The case is DISMISSED without prejudice. Signed by Honorable Timothy M Cain on 12/15/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Charles P. Craig,
Plaintiff,
v.
United States of America,
Defendant.

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Civil Action No. 2:16-cv-03737-TMC
ORDER

Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. In accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial
handling. The Plaintiff filed his Complaint on November 21, 2016. (ECF No. 1). On May 8,
2017, Defendant filed a Motion to Dismiss. (ECF No. 16). The magistrate judge issued an Order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the
potential consequences he could face if he failed to adequately respond to Defendant’s motion.
(ECF No. 17). Plaintiff filed a response to the Motion to Dismiss, (ECF No. 20), and filed a
Motion to Stay the proceedings so that he could obtain counsel and amend his Complaint. (ECF
No. 19). On June 20, 2017, the court denied Plaintiff’s request for appointed counsel (ECF No.
23) but granted Plaintiff’s Motion to Stay, giving Plaintiff forty-five (45) days to address the
insufficiencies of his Complaint. (ECF No. 23 at 3). To date, Plaintiff has not addressed the
insufficiencies of his Complaint.
Before the court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that the Defendant’s Motion to Dismiss be granted. (ECF No. 30). Plaintiff was
advised of his right to file objections to the Report. (ECF No. 30 at 7). Objections to the Report

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were originally due on November 20, 2017, but the Report was returned to the court as
“undeliverable” on November 27, 2017. (ECF No. 32). Plaintiff was located through the Bureau
of Prisons inmate locator tool, and the court re-mailed the Report to the address listed. Id. On
the date of re-mailing the Report, the court re-started the clock for the time in which Plaintiff
could file objections. However, Plaintiff has filed no objections, and the time to do so has now
run.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the
absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the Report (ECF No. 30), which is incorporated herein by
reference. Accordingly, Defendant’s Motion to Dismiss (ECF No. 16) is GRANTED, and the
case is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
December 15, 2017
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
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of the Federal Rules of Appellate Procedure.

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